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If you’re looking for some intellectual exercise over the weekend, I’d recommend trying to get your head around the rights and wrongs of the dispute between Japan and China over the Senkaku (or Diaoyu) Islands in the East China Sea.

I’ve been prompted to this exercise by an article in this morning’s Fairfax papers by former prime minister Malcolm Fraser, who draws attention to material on the dispute published by New York Times correspondent Nicholas Kristof. You can read the competing Chinese and Japanese scholars here, here and here (if Fairfax was interested in joining the twenty-first century it could have provided the links in the article), and there’s plenty more in the relevant Wikipedia article.

Since Fraser and I have something of a history, I should say first off that I agree with him on what I take to be the central contention of the article: that the Senkaku dispute should be resolved peacefully and according to international law, and that Australia should not automatically sign up to the Japanese (or American) position – and, a fortiori, that we should not go to war in support of it.

I think Fraser is absolutely right to say that “We should not follow a superpower into war, merely because it wants us to, or because of ANZUS,” and that if we think “that is the only way we can guarantee one day, that if we need help, it will help us,” then we are badly mistaken.

But I disagree with his pessimistic assessment that war over the Senkakus is a realistic prospect. For the very reasons he gives why containment of China is quite different from containment of the Soviet Union – that China “is heavily entwined in the economies of nearly every Western country” – I think all parties will ensure that their sabre-rattling stops well short of actual hostilities.

So just going by the legal rights of the issue, who should we support? The undisputed facts are that Japan annexed the islands in 1895; that they were included in the Ryukyu Islands protectorate exercised by the United States after the Second World War; that since the Ryukyus were returned to Japan in 1972 they have been under Japanese control, but China has consistently disputed Japanese sovereignty.

In the instrument of surrender and subsequent peace treaty that ended the Second World War, Japan agreed to return all territories it had seized by force since the 1894-95 war with China. Japan, however, claims that the Senkakus were terra nullius at the time and therefore do not fit that description: China disputes that. Japan also argues that by making no attempt to assert its sovereignty in the period 1945-71, China effectively waived any claim to the islands.

I wouldn’t go as far as Kristof in saying that the Chinese case is “compelling”, but it’s certainly arguable. In fact it’s exactly the sort of case that the organs of international law are equipped to adjudicate – somewhat reminiscent of the Clipperton Island arbitration of 1931. Instead of arguing about alliances, all nations should be trying to prevail on both China and Japan to take the case to the International Court of Justice.

Well before the recent acrimony over the islands, William Heflin analysed the competing claims in a 2000 law journal article. He was sympathetic to China’s moral claims, but concluded that the legal precedents would favor Japan if the issue were to go to court.

He may be right. I’m not at all sure, and while I find it a very interesting question, I don’t feel any stake in the outcome. Other things being equal my inclination would be to back Japan, a (flawed) democracy, over China, a dictatorship. But we should all know by now that a personal preference for one side doesn’t entail that they’re in the right.

Nor, of course, does it justify going to war. Like many international disputes, just which way this one gets settled is much less important than that it be settled peacefully.

That’s an alarming thought, LN. It’s certainly the sort of direction that Mr Abe seems to be heading in. But I think the trade-off is more likely to work the other way – the US will keep pushing Japan’s interests vis-a-vis China in return for them officially staying non-nuclear.